Court Blocks 2 Amendments From North Carolina Ballot After Governor's Lawsuit

by | August 22, 2018

By Lynn Bonner

A panel of Superior Court judges on Tuesday blocked two North Carolina constitutional amendments from statewide ballots.

The order from a three-judge panel said ballots should not be printed that ask voters to make changes in the state constitution on how state boards and commission members are appointed and how judges are selected to fill vacancies. The order said those ballot questions did not fully inform voters of the changes that would result if the measures passed.

The court order gives Gov. Roy Cooper a victory, at least temporarily, in his lawsuit against legislative leaders.

The order has no real effect since the judges last week ordered that no ballots be printed while the court cases and appeals continue.

Attorneys representing Cooper, the state elections board and legislative leaders said at a hearing last week they would appeal the order if their side lost.

The Republican-led legislature wants voters to make six changes to the state constitution.

The Democratic governor wants two amendments removed, arguing the ballot language is misleading. One would strip governors of their power to appoint members to hundreds of boards and commissions and give that power to the legislature. The other would give the legislature a major role in filling judicial vacancies, now done by the governor.

On Monday, the state's five former living governors, Democrats and Republicans, stood together to criticize those amendments, The News & Observer reported. The five former governors filed a friend-of-the-court brief supporting Cooper's position.

The NAACP and Clean Air Carolina want those two amendments and two more removed.

Lawyers for House Speaker Tim Moore and Senate leader Phil Berger argued at last Wednesday's hearing that courts have no role in determining which constitutional amendments go to voters.

In their order, a majority of the three-judge panel said ballot language for the amendments changing how board members would be appointed and how court vacancies would be filled do not "sufficiently inform the voters" and are "not stated in such a manner as to enable them intelligently to express their opinion."

The order said Cooper, the state elections board, and the NAACP would suffer irreparable harm if the two questions were placed on the ballot, concluding that the ballot language does not meet constitutional standards for submission to voters.

The order also echoed an observation by Democrats that the legislation on judicial vacancies was written in such a way that legislators could attach judicial appointments bills to unrelated legislation to escape a governor's veto. "The ballot language makes no mention of any effect of the Amendment upon veto powers of the Governor," the order said.

Berger said at a news conference earlier this month that bypassing vetoes was not the intent, The News & Observer reported.

The court on Tuesday denied the NAACP request to remove an amendment that would have voters decide whether to enshrine a voter photo ID requirement in the constitution and another amendment that would reduce the maximum state income tax rate from 10 percent to 7 percent. The ballot language for those amendments is not misleading, the order said.

The judges said Clean Air Carolina does not have legal standing to bring a lawsuit.

The NAACP argued that legislators are "usurpers" because federal courts declared 28 districts to be unconstitutional racial gerrymanders. Changes were made to 117 of 170 legislative district boundaries to comply with federal orders.

The court said the NAACP usurper claim "constitutes a collateral attack on the acts of the General Assembly, and, as a result, are not in the jurisdiction of this three-judge panel."

On Friday, state Republican Party Executive Director Dallas Woodhouse said a "constitutional crisis" would be triggered if Democrats on the Supreme Court allow questions to be taken off the ballot. He suggested legislators could vote to impeach the justices.

One of the three judges, Judge Jeffrey K. Carpenter of Union County, wrote that he did not agree with everything in the order and would file a separate opinion.

(c)2018 The News & Observer (Raleigh, N.C.)